Abstract

In this paper, we address the question of "open access" and its relationship to the architecture of the Internet. It is our view that the extraordinary growth and innovation of the Internet depends crucially upon this architecture. Changes in this architecture should be viewed with skepticism, as they may in turn threaten this innovation and growth. Many cable companies have recently adopted or threatened a policy of bundling high-speed cable modem service with ISP service. This bundling threatens to compromise an important architectural principle of the Internet: the Internet's "End-to-End" design. In our view, this change could have profound implications for the future of growth and innovation on the net. The FCC's analysis of the cable modem industry to date has not considered these principles of the Internet's design. It therefore does not adequately evaluate the potential threat that bundling presents to open access to the Internet. Neither does the FCC's approach properly account for its role in creating the conditions that made the Internet possible. Under the banner of "no regulation," the FCC threatens to permit this network to calcify as earlier telecommunications networks did. Further, and ironically, the FCC's supposed "hands off" approach will ultimately lead to more rather than less regulation. We do not yet know enough about the relationship between these architectural principles and the innovation of the Internet. But we should know enough to be skeptical of changes in its design. The strong presumption should be in favor of preserving the architectural features that have produced this extraordinary innovation. The FCC's presumption should be against approving mergers or policies that threaten these design principles, without a clear showing that the threat would not undermine the Internet's innovation.

Lemley, Mark A. and Lessig, Lawrence, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era (October 1, 2000). UCLA Law Review, Vol. 48, p. 925, 2001; Stanford Law and Economics Olin Working Paper No. 207; UC Berkeley Public Law Research Paper No. 37. Available at SSRN: https://ssrn.com/abstract=247737 or http://dx.doi.org/10.2139/ssrn.247737